GUIDE TO: Checking a person’s understanding – Their capacity to consent
It is always good practice to check how much a person has understood of what is happening to them whatever age they are. Capacity to consent must be assumed unless assessed otherwise. It is essential to remember that each decision is time location and decision specific. A variety of communication tools should be employed to aid a person’s understanding in order to gain a full picture of their understanding such as signs, photos, videos, music and books beyond words materials. These will assist health professionals to get care right alongside following the 5 main principles of the Mental Capacity Act (2005).
Mental Capacity Act 2005 - 5 main principles
1 A presumption of capacity – every adult has the right to be supported to make decisions –use photos, pictures, props, signs, symbols etc
2 The right of individuals – to be supported to make their own decisions
3 Individuals must maintain that right – even if the decisions might be seen as unwise or eccentric- can the person weigh up the risks and benefits of having or refusing treatment
4 Best Interests – always in the clients best interests
5 Least restrictive intervention
Factors to take into account when checking understanding
• Do not make assumptions based on the person's age, appearance, condition, disability or behaviour
• Find out the persons past and present wishes, beliefs, values and feelings and any other factors they would be likely to consider if they had capacity, including any advanced statements
• The views of other people who know the person
If the capacity of an individual over the age of 18 is in question, health professionals need to carry out a four point capacity test, in accordance with the Mental Capacity Act (2005).
Is the person able to:
• Understand the information relevant to the decision?
• Retain the information long enough to make the decision?
• Use or weigh up the information?
• Communicate their decision?
If the person lacks capacity:
• Can the decision be delayed if the person may regain capacity?
• Act in the best interests of the person
• Consider holding a Best Interest meeting under the Mental Capacity Act (2005)
• Always use the less restrictive option
• Encourage participation in the decision
• Consult all relevant people
• If the person has no relatives consider a referral to the Independent Mental Capacity Advocate Service (IMCA)
A helpful way to assist in capacity assessments is to employ the CURB BADLIP approach
• CURB is used to assess and document capacity:
• C Communicate. Can the person communicate his/her decision?
• U Understand. Can he or she understand the information you are giving?
• R Retain Can he or she retain the information given?
• B Balance Can he or she balance or use the information?
If an individual does not have capacity move onto BADLIP to consider if a decision can be made following a review of best interests
• B Best interest. If the person lacks capacity can you make a best interest decision?
• AD Advanced Decision
• L Lasting Power of Attorney Has Lasting Power of Attorney been appointed?
• I Independent Mental Capacity Act Advocate. Is the person without anyone to be consulted about his or her best interest. In an emergency involve an IMPCA
• P Proxy If unresolved conflicts exist, consider local ethics committee of the Court of Protection appointed deputy
Hoghton and Chadwick (2011)
Just because a person may lack capacity at one time about one particular decision, it does not mean that they lack capacity in other areas or aspects of their life (Blair (2013)).
Blair.J, (2013) ‘Everybody’s life has worth – Getting it right in hospital for people with an intellectual disability and reducing clinical risks’ Clinical Risk 2013; 19: 58–63
Hoghton.M, & Chadwick.S, (2011) RCGP Mental Capacity Act (MCA) Toolkit for in England and Wales 2011’ London : RCGP www.rcgp/~/media/Files/CIRC/CIRC-76-80/CIRC-Mental-Capacity-Act-Toolkit-2011.ashx